Brandon Meeks v. A. Nunez

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 3 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRANDON MEEKS, No. 17-55364

Plaintiff-Appellant, D.C. No.
3:13-cv-00973-GPC-BGS
v.

A. NUNEZ, Correctional Officer; T. MEMORANDUM*
SCOTT, Correctional Officer; J.
WILBURN, Correctional Sergeant; M.
ESTRADA, Registered Nurse;
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION,

Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding

Argued and Submitted August 31, 2021
Pasadena, California

Before: IKUTA, BENNETT, and R. NELSON, Circuit Judges.

Appellant Brandon Meeks asks us to reverse the district court’s imposition

of terminating sanctions and the dismissal of his 42 U.S.C. § 1983 action.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Exercising our jurisdiction under 28 U.S.C. § 1291, we hold that the district court

acted within its discretion by imposing terminating sanctions. See Conn. Gen. Life

Ins. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007). We

therefore affirm.

1. Meeks argues that terminating sanctions were unavailable to the district

court to impose. We disagree. Federal Rule of Civil Procedure 37 allows

imposing terminating sanctions in two relevant situations: when a party “fails to

obey an order to provide or permit discovery” or “fails . . . to appear for that

person’s deposition.” Fed. R. Civ. P. 37(b)(2)(A), (d)(1)(A)(i), (d)(3).

Meeks attended his June 2016 deposition, making terminating sanctions

unavailable under Federal Rule of Civil Procedure 37(d). But his refusal to

participate in the June 2016 deposition violated prior court orders compelling his

participation.1 Though Meeks asserted the deposition was terminable due to

harassment, his only true grounds were that the Defendants had not obtained leave

from the court to depose him. See Fed. R. Civ. P. 30(a)(2)(B), (d)(3)(A). Because

the magistrate judge had, in fact, given leave months earlier, this objection had

already been overruled several times. Thus, the district court’s finding that Meek’s

failure to participate constituted willful non-participation in violation of past court

1
Because this case involves violating court orders and not merely refusing to
answer deposition questions, Estrada v. Rowland, 69 F.3d 405 (9th Cir. 1995) (per
curiam), is inapt.

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orders was not clearly erroneous. See Leon v. IDX Sys. Corp., 464 F.3d 951, 958

(9th Cir. 2006) (factual findings of willfulness will not be disturbed unless clearly

erroneous). Accordingly, terminating sanctions were available under Federal Rule

of Civil Procedure 37(b).

2. Meeks argues that the district court abused its discretion by imposing

terminating sanctions. We disagree. The district court’s finding that Meeks’s

repeated violations of court orders were within his control, and thus his actions

were willful, was not clearly erroneous. See Wyle v. R.J. Reynolds Indus., Inc., 709

F.2d 585, 589 (9th Cir. 1983). The district court also carefully considered the five

factors related to the imposition of case-dispositive sanctions: (1) the expeditious

resolution of cases, (2) docket management, (3) prejudice to the moving party, (4)

the preference of deciding cases on their merits, and (5) the availability of less

drastic alternatives. See Conn. Gen. Life Ins., 482 F.3d at 1096. Because Meeks

repeatedly violated court orders, the first and second factors favored sanctions. See

Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1411–12 (9th Cir. 1990). Because

Meeks’s conduct impeded the Defendants’ ability to gather information and mount

a defense, the third factor favored sanctions. See id.; see also Wanderer v.

Johnston, 910 F.2d 652, 656 (9th Cir. 1990). Because Meeks impeded his case’s

progress towards a disposition, the fourth factor favored sanctions. See In re

Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1228 (9th Cir.

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2006). And because the district court considered less drastic alternatives, tried to

implement feasible alternatives, and repeatedly warned Meeks that further

noncompliance could result in dismissal, the fifth factor was satisfied.2 See

Adriana Int’l, 913 F.2d at 1412–13.

The district court’s imposition of terminating sanctions did not violate due

process either as Meeks contends. So long as the sanctioned party’s actions

“threaten to interfere with the rightful decision of the case,” the imposition of case-

dispositive sanctions will not violate due process. Wyle, 709 F.2d at 591. Meeks’s

repeated refusal to follow the court’s orders directly impeded the fact-gathering

process undergirding the core controversy. Thus, terminating sanctions here did

not violate due process.

3. Meeks makes a host of other arguments criticizing the Defendants’

discovery practices and the magistrate judge’s decision to modify its initial

scheduling order. We do not consider these arguments on appeal as they were not

raised below. In re Mortg. Elec. Registration Sys., Inc., 754 F.3d 772, 780 (9th

2
Meeks argues that the district court could have ruled on his motion to terminate
as a less drastic alternative. But Meeks did not file a motion with the district court,
so the court could not formally rule on his objections. Still, the district court, when
dismissing the case, explained that Meeks’s objections during the June 13
deposition had already been overruled. Thus, the district court, in effect, ruled on
Meeks’s objections.

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Cir. 2014); Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006).3

AFFIRMED.

3
Defendants Estrada’s and Wilborn’s brief raises additional arguments which
Meeks does not present in his briefing. Because these issues are not presented in
Meeks’s briefing, they are not presented before us, and we need not address them.
See Fed. R. App. P. 28(a); Brown v. Rawson-Neal Psychiatric Hosp., 840 F.3d
1146, 1149 (9th Cir. 2016).

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